J & K Bricklaying Pty Ltd v Brown - [2009] NSWWCCPD 89

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Reported Decision: J & K Bricklaying Pty Ltd v Brown* (2009) 8 DDCR 51**
CITATION:			J & K Bricklaying Pty Ltd v Brown [2009] NSWWCCPD 89
APPELLANT:			J & K Bricklaying Pty Ltd
RESPONDENT:			Craig Lloyd Brown
INSURER:			CGU Workers Compensation (NSW) Ltd
FILE NUMBER:			A1- 10419/08
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:			30 March 2009
DATE OF APPEAL HEARING:		28 July 2009
DATE OF APPEAL DECISION:			31 July 2009
SUBJECT MATTER OF DECISION:			Sections 52A and 38A of the Workers Compensation Act 1987; whether worker seeking suitable employment
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr F Doak, instructed by Bartier Perry
Respondent:	Mr D Vorbach, solicitor, HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:			Paragraphs one and two of the Arbitrator’s determination of 30 March 2009, amended on 13 May 2009, are revoked and the following orders made: “1. The applicant employer having satisfied the grounds in section 52A(1)(a) of the Workers Compensation Act 1987, weekly compensation payments in respect of the respondent worker’s partial incapacity for work beyond 17 December 2008 are not payable. 2. Paragraph 1(b) of the Certificate of Determination dated 11 August 2003 is amended to delete the words “to date and continuing” and insert “17 December 2008”. 3. No order as to costs.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND

The respondent worker, Mr Brown, injured his right shoulder on 1 July 2002 in the course of his employment as a bricklayer with the appellant employer, J & K Bricklaying Pty Ltd (‘J & K’). He has been paid weekly compensation since his injury either on a voluntary basis or as a result of a by consent determination made by the Commission on 11 August 2003.

On 17 December 2008, J & K’s workers compensation insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’), served on Mr Brown notice of its intention to discontinue weekly compensation payments under section 52A(1)(a) of the Workers Compensation Act 1987 (‘the 1987 Act’).

The notice made the following assertions:

(a) Mr Brown was partially incapacitated for work;
(b) CGU had paid weekly compensation to Mr Brown on the basis of his partial incapacity for a period of 104 weeks;

(c) Mr Brown was not suitably employed within the meaning of section 43A of the 1987 Act, and

(d) Mr Brown was not seeking suitable employment, as determined in accordance with section 38A.

The employer filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 23 December 2008. That Application identified the issue in dispute as Mr Brown’s entitlement to weekly compensation beyond 17 December 2008. In response, Mr Brown filed a Reply on 19 January 2009. The Reply did not indicate the issues in dispute, but the documents attached to it made it clear that Mr Brown disputed CGU’s contentions.

The matter was listed for conciliation and arbitration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWWCCPD 89
Decision Date: 31 July 2009

CaseChat Overview and Summary

In the case of J & K Bricklaying Pty Ltd v Brown, the dispute centred around the cessation of weekly compensation payments for the respondent's partial incapacity for work, following an injury sustained during employment. The case was heard in the relevant state's tribunal. The employer, J & K Bricklaying Pty Ltd, sought to terminate the compensation payments, arguing that the worker had failed to secure suitable employment, a condition under Section 52A of the Workers Compensation Act 1987. The worker, Brown, contested this, asserting that he had indeed been making efforts to find suitable employment.

The legal issues before the tribunal revolved around the interpretation and application of Sections 52A and 38A of the Workers Compensation Act 1987. Specifically, the court had to determine whether Brown was required to seek and accept suitable employment as a prerequisite for continuing compensation payments, and if his efforts in this regard were sufficient. Additionally, the tribunal had to assess whether Brown's incapacity was permanent and total, affecting his entitlement to ongoing payments.

The tribunal meticulously reviewed the evidence presented by both parties. It concluded that Brown had not actively or persistently sought suitable employment, as required by Section 52A(1)(a) of the Act. The tribunal found that Brown's efforts to find work were insufficient and did not meet the legal standards for continuing compensation payments. As a result, the tribunal revoked the previous determination and ruled that the employer was not obligated to continue weekly compensation payments from 18 December 2008. Furthermore, the tribunal amended the Certificate of Determination to reflect the new end date of compensation payments.

The tribunal made clear that no costs were awarded to either party, reflecting the balanced nature of its decision. This outcome highlights the importance of stringent adherence to the legislative requirements concerning the pursuit of suitable employment when claiming ongoing compensation benefits under the Workers Compensation Act 1987.

Orders

Orders of the court

Paragraphs one and two of the Arbitrator’s determination of 30 March 2009, amended on 13 May 2009, are revoked and the following orders made:

“1. The applicant employer having satisfied the grounds in section 52A(1)(a) of the Workers Compensation Act 1987, weekly compensation payments in respect of the respondent worker’s partial incapacity for work beyond 17 December 2008 are not payable.

2. Paragraph 1(b) of the Certificate of Determination dated 11 August 2003 is amended to delete the words “to date and continuing” and insert “17 December 2008”.

3. No order as to costs.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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